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Category: Rights

Yesterday, in Bethune-Hill and McCrory, counsel for the voter-plaintiffs asked the Supreme Court to reverse the Virginia decision and affirm the North Carolina decision. The state-defendants requested the opposite. Based on the Justices’ questions, the plaintiffs appear poised to get what they want. Yet, a full-out victory for either side should concern all of us—including the plaintiffs. That is because counsel for the voter-plaintiffs may have just purchased a few state house seats at the cost of the Voting Rights Act itself.

The arguments yesterday weremarkedbyconfusion, with the underlying tension between the commands of the Voting Rights Act and the Equal Protection Clause coming up on several occasions. Indeed, at one point, counsel for the state-defendants went so far as to raise the issue directly, prompting a quick response from Justice Kagan:

CLEMENT: [T]he Voting Rights Act makes the consideration of race absolutely necessary. . . . [U]nless you want to take the first steps towards declaring the Voting Rights Act unconstitutional, you don’t want to send the signal that when legislatures approach this in a way that I think is perfectly appropriate to what’s going on. . . .

JUSTICE KAGAN: You absolutely don’t, Mr. Clement.

Unfortunately, this problem cannot be so easily ignored when the Justices are forced to put pen to paper. They are the ones who must harmonize the racial sorting claim with the commands of the Voting Rights Act, and for the time being they seem to be at a loss. As Justice Breyer tellingly noted towards the end of the arguments:

JUSTICE BREYER: But, . . .what exactly is going on, in part, is a very tough matter. . . . There were many States that had many black citizens and had no black representation, and there was a [decision to] have majority-minority districts. And the problem is, how does the law permit the creation of that, and at the same time, prevent the kind of packing that might appear in other cases, which is gerrymandering? And . . . no one, I think, has a good answer to that question. There is just slightly better, slightly worse.

But there is a good answer to that question, and there is a way forward. Unfortunately, it wasn’t offered by either side and requires rejecting both sets of arguments in part. For the reasons stated below, the Court should reject the plaintiffs’ view of predominance in Bethune-Hill, reject the states’ justifications for gerrymandering in McCrory, and affirm the results in both cases. The Voting Rights Act depends on it, the Constitution demands it, and our democracy requires it.

In a recent post, this blog examined the most significant racial and political gerrymandering cases unfolding in the year ahead. And, just in time for Thanksgiving, the United States District Court for the Western District of Wisconsin has issued an historic decision in one of those cases—Whitford v. Gill (3:15-cv-421)—and has struck down a state legislative redistricting plan as an unconstitutional partisan gerrymander for the first time ever. This is something we can all be thankful for, and special thanks are due to the Campaign Legal Center, which helped bring the case, and Nick Stephanopoulos and Eric McGhee, who set out the “efficiency gap” test put forth in the case.

Although the parties are yet to brief the district court on the proper remedy to be applied, an appeal to the Supreme Court is undoubtedly forthcoming. There, the case will await review along with Harris v. McCrory (16-166), which is likely to be heard or decided in the aftermath of the Court’s decision in McCrory v. Harris (15-1262). What are the odds that the decision is upheld? Let’s carve into the district court’s meaty opinion (sorry, give me one holiday pun), and find out.

The debate is also unfolding in the courts, with partisan and non-partisan groups engaging in a multi-front legal battle over racial and political gerrymandering. Although the war over congressional and state redistricting maps is likely to continue for many years to come (and will heat up in the aftermath of the 2020 census), the year ahead holds significant developments for legislators designing maps, litigators challenging maps, and the voters and candidates who must live with the consequences of the evolving law in this space. At stake is the constitutionality of the Voting Rights Act as applied to redistricting, the reconciliation of the Fourteenth and Fifteenth Amendments, the practical ability of legislators to comply with the law, the balance-of-powers problems raised by the “judicialization” of the redistricting process, the collateral consequences of racial gerrymandering decisions on other racial justice initiatives, and the potential for political gerrymandering claims to upturn partisan maps nationwide—all issues that take on fresh urgency with the future direction of the Supreme Court becoming clear.